From: Genc Pollo
Comment: Extending the Mandate of Vetting Bodies: The Options on the Table

1-    The decent proposal: the Albanian Helsinki Committee

On October 27, the Albanian Helsinki Committee through a press release recommended that the extension of the mandate of first-level vetting bodies (especially the Independent Qualification Commission or IQC) as formally proposed by the Socialist Party, should be subject to a wide and thorough consultation, where in addition to official institutions also “constitutionalist and justice experts, professors of the Faculties of Law in our country, civil society organizations that have monitored the implementation of justice reform” should be heard.

AHC is so far the only institutional voice that is rightly launching an appeal that before the Constitution is amended, there should be an inclusive public debate with all those who have the knowledge, competence, interest to have a say on the issue.

In a functioning democracy, such a debate should take place before the amendment itself is written; the latter commits to paper one of the debated alternatives. Also, the principles of a functioning democracy exclude the politics of fait accompli; even more so for constitutional changes that, by law, cannot be made without the consensus of the opposition.

The parliamentary rules of procedure provide for a certain amount of time for consultation and debate, especially on constitutional amendments. But when it became obvious that the constitutional deadline was approaching and that vetting was far from over, the interested parties should have thought and talked about this problem and how to fix it.

Unfortunately, this did not happen, although issues pertaining to vetting and the judiciary in general are of wide public interest and have an impact on people’s every day life.

At the end of the five-year constitutional term, just over half of the magistrates have been vetoed by the IQC. Given the circumstances, it is necessary to understand why this happened and to find the optimal way to complete the vetting. For this, there are three clear options:

a- The worst option: Extending the mandate of the existing commissioners for a few more years:

At first sight, this proposal would sound reasonable, except for the significant problems observed in how this body works. Formed by people in the majority close to the SP (the DP neglected the process even though the Hahn-Nuland formula allowed it to appoint half of the commissioners) The IQC undertook the dismissal of magistrates of ill repute. But in addition it also fired respected ones and kept in the offices others that deserved being sacked. The method was the application of double standards; the motives were partisan-personal; even material motives were alluded.

The International Monitoring (IMO) Operation could not prevent these cases. The flagrant case of the Tirana prosecutor, who was confirmed by the IQC as wished by the ruling party, was the drop that spilled the glass and provoked public protests by the IMO. The EU Delegation and the US Embassy also protested loudly. To add weight to the statement, they reminded the public that they were speaking on behalf of Brussels and Washington and not in their personal capacity as one might think. Furthermore, five IQC commissioners (out of a total of 12) were found not to meet the criteria for appointment; some of them have been sued for this.

That would be enough to call this option unacceptable and, compared to others, the worst option. This even without having to wait for investigations into allegations of “material motives”.

b- Reasonable option: Appointing new commissioners and extend the mandate for a few more years;

If a constitutional amendment made it possible to appoint new commissioners, the advantages would be that: 1) the party monopoly on the IQC would be replaced by a political “checks and balance” in the spirit of the Hahn-Nuland formula; 2) Candidates for commissioners would be rigorously selected in terms of integrity and professionalism criteria. They would also inherit the infrastructure and positive part of the experience so far. A renewed IQC would better perform the vetting of the remaining magistrates. The problem may be that the old IQC can become a ‘loose cannon’ until June 2022.

c- The constitutional option or listen to Venice;

The Venice Commission’s insistence that vetting, like any extraordinary measure, should not last long, led to the agreement that after five years, the vetting process should be carried on by the two councils governing the judges and the prosecutors. At that time, no one thought that the “performance” of IQC would be this poor. This option risks overloading both councils. In this case the councils should be supported by the existing IQC infrastructure and necessary additional resources. The IMO must continue to operate. The risk of the “loose canon” until June 2022 stays.

d- The unknown option;

I dedicate this paragraph to the human mind which, through curiosity, reasoning and argument /counter-argument deliberations has generally reached wise conclusions. Noting that the public debate on finding the best option, apart from a note or discussion, has not yet taken place, this substantive debate should begin as soon as possible.


2-Indecent silence: Official opposition

Surprisingly enough, the official opposition has kept its silence on the issue; its leaders initially called it a “non-priority” which is absurd. Then they said that this is just a “commissioners’ salary issue” which is an unnecessary trivialization.

The DP in the past had the courage to speak the inconvenient truth  regarding justice reform to a powerful front of political profiteers and useful idiots. Following the DP, the civil society and the media began to notice and discuss many related problems

It would therefore be unforgivable for the DP to continue like an ostrich hiding its head in the sand; and it would be unthinkable for it to support bad options for Albanian justice.

3-Indecent proposal: Balla plus two

As expected, over the summer the Socialist Party signaled its support for the worst option. The constitutional amendment that envisages the current IQC staying until December 2024 was ironically submitted by the MP known as the political hinge of drug gangs in his constituency town. Moreover, they pushed it quickly through the parliamentary procedure without any consensus in sight. The SP is however consistent in its efforts to shape the “new justice” at its convenience. But it is interesting to peruse the reasoning in the explanatory report of eight pages (yes, only 8 pages report for a constitutional amendment!). In fact, the reasoning summarized in less than three pages (pp. 6, 7 and 8) shows some intellectual misery of its drafters. I am sure this is not the average level of the Socialist Party. Instead of full data, exhaustive analysis and in-depth reasoning that would match the capacity of a large party, those few paragraphs explain that the delay was caused by the (predictable) drafting of working regulations, the lack of offices and laptops (responsibility of the government which at the time unjustifiably halved the vetting budget) and by Covid-19 (force majeure). By very creative logic it asserts the proposal is in line with the opinion of the Venice Commission. No other issues are analyzed and there is explanation why the December 2024 deadline suffices this time to do the job.

The EU Ambassador in early October and the US Ambassador three weeks later appealed for an extension of the vetting bodies (but without clarifying whether with the same or new commissioners). They refer to an IMO opinion that has not been made public; it is not known at whose request it was drafted (do we need to think about the conflict of interest as well?). But they neither explain nor reason: they simply proclaim that Albania needs to change its Constitution. Even in a country like ours, experienced in the arrogance of some internationals, this sounds like a bit too much. Unfortunately we see a cabal that remains a bad model for democracy and the rule of law; precisely by representatives of countries that have contributed for and invested in these values in Albania.

Genc Pollo is a former Deputy Prime Minister, Minister of Education, Minister of Telecom & IT, former Chairman of the Parliamentary Committee on Education and Media and also of European Integration.